Jordan v. Fehr, 2005 WL 831382 (Fla. 1 DCA April 12, 2005)

Under F.S. § 733.201(1), a Will that that is “self-proved” in accordance with the statutory form provided in F.S. § 732.503, is admissible to probate without the testimony of the attesting witnesses. If the Will is not self-proved, under F.S. § 733.107 the proponent of the Will has the burden of establishing “prima facie” its formal execution and attestation. OK, now that I’ve spun your head with all these rules, what do they mean in real life you may ask?

A simple statutory form can make all the difference in the world if it shifts the burden of proof in a Will contest. In this case, one of the attesting witnesses described his role as follows:

I’m like a monkey, I wrote my name and address and I was gone.

Based on this kind of testimony, is it any wonder that the First DCA reversed the trial court’s refusal to grant summary judgement in favor of the party challenging the Will? Would the outcome have been different if the attesting witnesses had simply signed a self-proving affidavit and thus shifted the burden of proof to the challenging party? Maybe not, but then again, maybe it would have been just enough to tip the case the other way. Yes, a simple statutory form can be a big deal.